Tuesday, February 28, 2017

Threats Conviction Needs More Than Reprimand

The Georgia Supreme Court rejected a public reprimand as the sanction for an attorney's behavior in his own divorce

In his petition, Spain, who became a member of the Georgia Bar in 1999, admits that he pled nolo contendere in the State Court of Fayette County, Georgia to one misdemeanor violation of OCGA § 16-5-90 (stalking), and one misdemeanor violation of OCGA § 16-11-39.1 (harassing communications). He was sentenced to one year of probation on each count to be served consecutively. He states that the charges to which he pled nolo contendere were based on numerous emails that he sent over an approximately two-day period to opposing counsel in a divorce case, in which he is the defendant, and that he was acting pro se at the time, although he has since retained counsel. Spain further admits that the emails included inappropriate threatening language, intimidation and personal attacks directed to opposing counsel, including inappropriate remarks about counsel and members of her family, and ad hominem statements about his wife. He admits that by virtue of his convictions, he has violated Rule 8.4 (a) (3) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d)... 

Spain offers in mitigation that he has no prior disciplinary record and at the time of his misconduct he was suffering from personal and emotional problems related to his marriage, compounded by the divorce which, contrary to his expectations based on a prenuptial agreement, entailed substantial litigation for which his bankruptcy practice provided no helpful experience. Spain states that he has since retained an attorney to represent him in the divorce action and that he has sought professional help for these problems. In addition, he states that he acted in good faith to rectify the consequences of his conduct by entering nolo contendere pleas, and he has cooperated fully with the State Bar in bringing this matter to a voluntary resolution. Finally, he states that his misconduct did not involve his own practice or his own clients, he is deeply remorseful and recognizes that his conduct was contrary to his professional obligations and longstanding personal values, and he wishes that he could reverse his actions. Spain asks this Court to impose a Review Panel reprimand or, if this Court disagrees, he states that he is willing to accept a public reprimand. 

The State Bar also favored reprimand under the "unique set of circumstances" but

Having reviewed the record as a whole, we disagree with Spain’s and the State Bar’s recommendation that a Review Panel or public reprimand is an appropriate sanction for his Rule 8.4 (a) (3) violation. Accordingly, this Court rejects Spain’s petition for voluntary discipline.

(Mike Frisch)

February 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Unlocking Secrets Leads To Locked Room

A convicted attorney who consented to disbarment in Pennsylvania has crossed the Delaware and gotten the same sanction in New Jersey.

From the report of the Disciplinary Review Board

A brief overview of respondent.s conduct was set forth in respondent’s first appeal, in connection with his conviction of, and sentence for, tax evasion, conspiracy to defraud the United States, and violation of the related tax provisions. Respondent argued that the Eastern District erred by denying him a hearing in connection with a prior grant of immunity and that the court committed various procedural errors at sentencing. The Third Circuit found that the Eastern District had not abused its discretion when it declined to hold a hearing and determined that the government had met its burden of demonstrating that it had acquired its information independently of any immunized testimony.... The Third Circuit, therefore, affirmed respondent’s conviction, but vacated the sentence, and remanded the matter for resentencing on the aiding and assisting others in the filing of false returns counts and as to the special assessment.

According to the Third Circuit, respondent "believed that he had unlocked the secret to avoiding all federal income taxes." As one of his associates testified, respondent’s strategy was to "hide his clients in plain sight." Respondent severed any link between an individual’s social security number and the income he or she earned, often by having the income made payable to a corporation the individual controlled, rather than to himself or herself. Id. at 594-595. Respondent created convoluted corporate transactions to render it difficult for the Internal Revenue Service (IRS) to trace the flow of his and his clients’ monies. Despite earning substantial income, respondent had not filed an income tax return since 1990...

Through his actions, respondent caused individuals and entities to underreport to the IRS approximately $24 million in income, which resulted in an approximate loss of $4.9 million in tax revenue.

What the attorney actually unlocked was the door to get into federal prison.  (Mike Frisch)

February 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

New Jersey Pursues Sex Harassment Charges

The New Jersey Herald reports on bar charges filed against a New Jersey attorney

The state Office of Attorney Ethics has notified attorney Michael S. Garofalo of its intent to commence disciplinary proceedings against him for harassing two women over a combined period of several years and then lying about it to investigators.

Garofalo, 57, is accused in a complaint filed with the state Supreme Court last month of criminally harassing and stalking one woman -- even visiting and leaving a cryptic message at her place of business at one point -- and of sending her and another woman harassing emails from the law firm where he formerly worked...

The complaint, however, includes evidence in the form of emails sent by Garofalo to the two women, one of whom he persisted in sending requests to get together for lunch, drinks, exotic vacations, and sex.

After his advances were spurned, his demands took on a more ominous tone in which he called the woman various obscenities and warned her that "you just met your match in me."

According to the complaint, the woman -- a former employee of Laddey, Clark & Ryan with whom Garofalo is alleged in the complaint to have had "a brief consensual sexual relationship" in 2005 after she was no longer working there -- remained friends with him until 2009.

After that point, according to the complaint and emails, she continued to receive email solicitations from Garofalo in which he referred to her alternately as his "sex toy," "love muffin," "sweet cheeks" and, in one instance, as a "hooker."

After she requested that he stop contacting her and told Garofalo she was changing her phone number, Garofalo replied to her by email in January 2012 that "changing your phone number only makes me come up with other ideas."

Two days later, according to a police report included with the complaint, a photo of Garofalo was found taped to the front door of the office building in Parsippany where the woman was working at the time. When she arrived for work that morning, the woman was informed of the incident, which she promptly reported to the Parsippany Police Department, according to information included with the complaint.

The same source had an update on the allegations. (Mike Frisch)

February 28, 2017 in Bar Discipline & Process | Permalink | Comments (1)

"Probably Drug Money"

A recommendation for discipline from the Illinois Review Board

Respondent is a real estate broker and attorney who agreed to assist a client with the purchase of property. The client gave Respondent $45,000 in cash for the purchase. Respondent did not deposit the funds in a client trust account, but, instead, kept the cash in in her office, where it remained until someone took it. When the property purchase did not occur and the client asked for his money back, Respondent was unable to return his funds.

The ARDC filed a two-count complaint against Respondent, charging her with failing to keep her client reasonably informed of the status of a matter, failing to safeguard his funds, failing to promptly deliver his funds to him and provide an accounting upon his request, committing a criminal act by failing to report her receipt of the cash to the IRS, and engaging in dishonesty by taking actions that resulted in the violation of government regulations.

Following a hearing, the Hearing Board found that Respondent violated Rule 1.15(a) by not properly depositing her client's funds and Rule 1.15(d) for not promptly returning them or providing an accounting upon request. It also found that she violated Rule 8.4(c) by taking actions that prevented a bank from reporting a cash transaction of more than $10,000. It found that she did not commit the other charged misconduct. It recommended she be suspended for 18 months and until she completes the ARDC Professionalism seminar and makes restitution of $12,512.50 to her client for the legal fees he incurred in trying to recover his funds.

Respondent filed exceptions, arguing primarily that the Hearing Board erred in finding misconduct because it failed to recognize that the $45,000 was probably drug money and that, if she had deposited it, she could have been accused of assisting her client in criminal activity or of committing the crime of money laundering. She also argued that some of the Hearing Board's factual findings, including that she engaged in dishonesty, were against the manifest weight of the evidence.

The Review Board affirmed the Hearing Board's findings of misconduct, finding that Rule 1.15(a) was not discretionary and did not permit Respondent to keep her client's funds in cash in her office; and that the Hearing Board's remaining findings of fact and of misconduct were not against the manifest weight of the evidence.

The Review Board also agreed with the Hearing Board's recommendation that, for her misconduct, Respondent be suspended for 18 months and until she completes the ARDC Professionalism seminar and reimburses her client for the legal fees he incurred in trying to recover his funds. It found, however, that the amount of restitution should be $5,803.75.

(Mike Frisch)

February 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Justice Wisconsin-Style

A majority of the Wisconsin Supreme Court overruled precedent and reversed the Court of Appeals  in order to deny an application to test DNA evidence for exoneration purposes.

The defendant was convicted of murder in 1982 and sentenced to life in prison.

Justice Zeigler for the majority

We conclude that the circuit court did not err in denying Denny's postconviction motion for forensic DNA testing of certain evidence. Consequently, we reverse the decision of the court of appeals.

Chief Justice Roggensack concurred and dissented

Although the majority opinion correctly overrules Moran's interpretation of Wis. Stat. § 974.07(6), in which portion of the opinion I concur and join, I dissent from the part of the majority opinion that concludes that Jeffrey Denny is not entitled to DNA testing of evidence collected at the crime scene. I conclude that Denny met the statutory requirements of Wis. Stat. § 974.07(7)(a); and therefore, the circuit court was required to grant Denny's motion for forensic DNA testing. Accordingly, I respectfully concur in part and dissent in part with, and from, the majority opinion.

Justice Ann Walsh Bradley dissented

[The majority]  now overrules Moran and runs roughshod over the fundamental doctrine of stare decisis. To justify overturning unanimous precedent, the majority unearths a heretofore unknown test which it labels "principles of policy." Majority op., ¶71. Apparently not very convinced of the legitimacy of its own discovery, the majority obscures the application of the new test by tucking it away in a footnote. Id., ¶70 n.16.

In overruling Moran, not only does the majority apply a test that courts have never before used, it also attempts to justify its action by relying on an "imagine[d]" purpose that the legislature never stated. Garnering a trifecta of "nevers," it then embarks upon rewriting the plain meaning of Wis. Stat. § 974.07 by inserting a limitation that the legislature never created...

The rights and interests of crime victims are undeniably important considerations, which the legislature has already addressed through the notice provisions in Wis. Stat.§ 974.07(4). However, relying on an "imagined" policy reason to limit the availability of DNA testing strays too far from subsection (4)'s victim-notification mandate. See State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶48, 271 Wis. 2d 633, 681 N.W.2d 110. There is nothing in the text of the statute that suggests the legislature intended to limit post-conviction DNA testing due to the speculative concerns the majority identifies here.

Contrary to the majority's assertions, allowing DNA testing does not undermine finality or lead to "the possibility of 'inequitable results'" due to "open[ing] up cases that have long been thought by everyone, including crime victims, to be final." Majority op., ¶70 n.16 (citation omitted). Performing DNA testing on relevant evidence is only the first step in a process where the defendant must next demonstrate that the results of the testing support his claim. See Moran, 284 Wis. 2d 24, ¶47 (allowing DNA testing does not guarantee a new trial or even an evidentiary hearing).

If the DNA test results do not support a defendant's claim, the case is not reopened. And if the DNA testing results do support a defendant's claim of innocence, victims will have little interest in finality if the true criminal perpetrator is still at large. See majority op., ¶70 n.16...

Contrary to the majority, I would adhere to this court's unanimous decision in Moran. The plain meaning of Wis. Stat. § 974.07(6) gives the defendant the right to test, at his own expense, evidence containing biological material that is relevant to the investigation or prosecution that resulted in his conviction. Additionally, the majority errs when it denies Denny the opportunity to test potentially exculpatory evidence by failing to acknowledge how the witness testimony could be undermined by exonerating DNA-evidence.

Justice Abrahamson joined the dissent and wrote separately to raise procedural issues with the majority opinion.

Dare to Think has a post about the underlying criminal case and the potential value of the DNA evidence. (Mike Frisch)

February 28, 2017 in Current Affairs | Permalink | Comments (0)

Sunday, February 26, 2017

Denial Hawai'in Style

The Hawai'i Supreme Court has denied reinstatement to a petitioner who had been reciprocally disbarred based on his voluntary license revocation in Georgia.

we find and conclude, after careful and thorough review, that Petitioner Duru failed to follow court rules governing his disbarment, particularly in his failure to inform his Maui employer or the Office of Disciplinary Counsel (ODC) of his foreign disbarment, and failed to fulfill substantive conditions of this court’s November 10, 2005 reciprocal disbarment, particularly his failure to successfully seek reinstatement in Georgia.

We further find and conclude that Respondent Duru has failed to prove by clear and convincing evidence, as required by Rule 2.17(b)(4) of the Rules of the Supreme Court of the State of Hawai'i, that he is rehabilitated from the ethical conduct underlying that disbarment, particularly his engaging in discussion of legal matters with a licensed attorney and the attorney’s client, his failure to report in his petition criminal and civil litigation in which he was involved during his disbarment, and his failure to timely act with initiative regarding his outstanding student loan obligations. 

The George Supreme Court's 2000 order notes

Duru admits that he pled guilty to three counts of False Tax Returns, in violation of 26 U.S.C. § 7206 (1), and two counts of Structuring Currency Transactions, in violation of 31 U.S.C. § 5324 (a) (3) and (c) (2), in the United States District Court for the Northern District of Georgia, which accepted Duru's plea on March 23, 2000. By entering the guilty plea to felony violations, Duru admits that he has violated Standard 66 (conviction of any felony or misdemeanor involving moral turpitude shall be grounds for disbarment) of Bar Rule 4-102 (d) and requests that the Court accept his voluntary surrender of license. We have reviewed the record and agree to accept Duru's petition for the voluntary surrender of his license, which is tantamount to disbarment.

Pacific Business News reported his 2005 reciprocal disbarment in Hawai'i. (Mike Frisch)

February 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Interim Suspension For Attorney Who "Respectfully Refuse[d] To Answer Any Questions"

An interim suspension has been ordered by the New York Appellate Division for the First Judicial Department of an attorney admitted in 1961.

In September 2016, a member of the law firm where respondent had been employed since April 2015, filed a complaint with the Attorney Grievance Committee in which he alleged that, inter alia, respondent had admitted to misappropriating "probably $250,000" from an estate for which he served as executor. Respondent's employment was immediately terminated. During a subsequent telephone conversation, respondent purportedly stated that he took the funds because of his deceased wife, who had been ill, and a large tax bill he received for failing to pay Unincorporated Business Tax.

The law firm conducted an investigation of the files maintained by respondent while he was employed with the firm which revealed "substantial financial irregularities in matters where [respondent] acted as a fiduciary and had sole control over trust and estate bank accounts." The law firm then retained the services of a forensic auditing firm to audit the matters in which respondent served as a fiduciary. The audit revealed that respondent had misappropriated over $1.3 million from nine estate and trust accounts.

The audit also disclosed an additional $2,053,500 in "questionable" transactions for which there was insufficient documentation to determine if these monies were also misappropriated by respondent.

By letter dated November 7, 2016, the Committee requested respondent submit a written answer to the law firm's complaint, a copy of which was enclosed along with the audit report and documents and records related thereto.

On November 17, 2016, respondent's counsel wrote the Committee advising that respondent was asserting his Fifth Amendment privilege and declined to respond to the allegations in the complaint because he had been informed that he was the subject of a criminal investigation by the New York County District Attorney's Office.

Thereafter, the Committee served respondent with a judicial subpoena requiring him to appear for an examination under oath. By letter dated November 29, 2016, signed by both respondent and his counsel, respondent advised the Committee that were he to appear for his deposition as directed he would invoke his Fifth Amendment privilege and respectfully refuse to answer any questions regarding the allegations at issue.

The Committee has now moved for an order, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9(a)(5), immediately suspending respondent from the practice of law until further order of this Court. Respondent consents to his interim suspension.

(Mike Frisch)

February 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For "Sloppy And Careless" Bankruptcy Representation

The Massachusetts Board of Bar Overseers publicly reprimanded an attorney for incompetent handling of a bankruptcy matter that involved property jointly owned by divorced spouses.

The summary from the Board's web page

On November 26, 2012, the respondent, on behalf of a debtor, filed a voluntary petition for relief under Chapter 13 of the bankruptcy code, together with schedules and a disclosure of attorney compensation. At the time he filed the petition, the respondent had experience representing debtors in simple bankruptcy matters but he had never previously filed a case where the debtor co-owned real property with a former spouse and he had never previously filed a motion to approve the sale of real estate. The respondent did not seek assistance from more experienced counsel.

Schedule A of the petition reflected that the debtor owned real estate subject to two mortgages. The debtor’s ex-wife also had an ownership interest in the property. Under the terms of a divorce agreement, the ex-wife was both a co-owner of the property and a creditor of the debtor. The respondent failed to identify the ex-wife as co-owner in Schedule H or list the ex-wife as a creditor in Schedules D, E or F, as required in the circumstances.

On May 14, 2015, the respondent filed a motion with the bankruptcy court to approve the sale of the property. The property was listed with a real estate brokerage firm that, at the time, employed the ex-wife as a salesperson in one of its offices. The firm waived any interest in any commission that would otherwise be due as a result of a sale. The motion did not comply with local procedural rules, as it failed to include an affidavit of “disinterestedness.” As a result, the motion was denied without prejudice.

The respondent refiled the motion on May 27, 2015, with an affidavit. The motion again failed to comply with local rules because the affidavit did not include certain required form language and did not attest that the signatory was a duly authorized agent of the firm. As a result, the motion was again denied without prejudice.

On June 29, 2015, the respondent filed an emergency motion to approve the sale of the property with a supporting affidavit, this time purporting to be signed under the pains and penalties of perjury by the owner of the firm. Before filing the June 29, 2015 motion and affidavit, the respondent had prepared the affidavit and provided it to his client to obtain the signature of the affiant. Later, the signed affidavit was delivered to the respondent’s office and slipped under his door. The respondent did not inquire of his client whether he had left the document under his door and did not confirm with the affiant that he had in fact signed the document. It is unknown who delivered or signed the affidavit, but the alleged affiant did not.

On May 7, 2015, after the bankruptcy petition had been filed, the debtor, with the assistance of the respondent, entered into a post-divorce “Agreement for Judgment” with his ex-wife in connection with an alleged child support arrearage. The respondent did not seek approval of the bankruptcy court before advising his client to enter into the agreement for judgment and did not otherwise contemporaneously disclose the agreement to the bankruptcy court, as required by 11 U.S.C., § 329(a).

As a result of the respondent’s lack of diligence, additional hearings were required, including a hearing as to the forged signature and proceedings for relief in connection with the probate court judgment dated May 7, 2015, at a cost to the estate. The respondent filed a motion to withdraw his appearance as counsel for the debtor on July 7, 2015, which was allowed on or about August 11, 2015. The debtor retained successor counsel.

On August 21, 2015, the court found that the errors by the respondent constituted legal work that was “sloppy and careless.” The respondent was ordered to, and did, disgorge the legal fees that were paid to him in the bankruptcy case. The respondent also disclosed all material information to the trustee and agreed to make the estate whole for any additional costs caused by the respondent.

(Mike Frisch)

February 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Former Prosecutor Gets Second Disbarment

Reciprocal disbarment has been ordered by a justice of the Massachusetts Supreme Judicial Court based on the imposition of that sanction in Pennsylvania.

As in Massachusetts, the duly-notified respondent did not appear at the disciplinary proceedings in Pennsylvania, and therefore the facts of his alleged misconduct were deemed admitted. The respondent had been an assistant district attorney in the Commonwealth of Pennsylvania. He was fired for documented instances of serious misconduct in his professional duties in three separate matters. Among other things, the respondent:

1) met intentionally, and alone, with witnesses whose mental competence was in question, against explicit court order not to do so, and discussed their testimony at length prior to their appearance in court, in a case involving sexual abuse against victims with mental impairments, ultimately resulting in the Commonwealth of Pennsylvania being unable to pursue some of the criminal charges; 2) met with a witness who was represented by counsel, without counsel's knowledge or consent, and discussed her intended testimony with her, resulting in the respondent being disqualified from representing the Commonwealth of Pennsylvania in the matter; and 3) in another case, deliberately mischaracterized and misrepresented the evidence, including repeatedly making references to evidence which he knew did not exist, and attempted to intimidate both the defendant and his counsel, by repeated instances of "yelling, menacing, and pointing in their faces" while court was in session.

Sanction per Justice Lenk

In deciding the appropriate sanction to impose, the Pennsylvania disciplinary committee noted that it had found no instances of a similar case in Pennsylvania. Given the severe nature of the misconduct, however, -- "repeated dishonest conduct, misrepresentation to the court and lack of respect for the court in his capacity as a prosecutor -- the committee concluded that the respondent's misconduct "was particularly harmful to the public's confidence in the legal system," and that nothing short of disbarment would protect the public and the legal profession. The committee also noted the additional aggravating factor of the respondent's continual refusal to participate in the disciplinary proceedings against him, notwithstanding having received notice in hand.

I agree completely with this reasoning and this result.

The Titusville Herald reported on the Pennsylvania action. (Mike Frisch)

February 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, February 25, 2017

Company Needs A Lawyer To Go To Court

The South Carolina Supreme Court held that certain activities of a management business violated proscriptions against the unauthorized practice of law.

The Court accepted this declaratory judgment action in our original jurisdiction to determine whether Community Management Group, LLC; its president, Stephen Peck; and its employee, Tom Moore, engaged in the unauthorized practice of law while managing homeowners' associations. We find Community Management Group engaged in the unauthorized practice of law...

We find Community Management Group engaged in the unauthorized practice of law when it (A) represented associations in magistrate's court, (B) filed judgments in circuit court, (C) prepared and recorded liens, and (D) advertised that it could perform the services we now clarify constitute the unauthorized practice of law.


Rogers Townsend asks that we permanently enjoin Community Management Group from any actions we find were the unauthorized practice of law. An injunction is a drastic remedy, which courts should apply with caution. Hampton v. Haley, 403 S.C. 395, 409, 743 S.E.2d 258, 265 (2013). An injunction should be issued only "where no adequate remedy exists at law." Id. After we issued the temporary injunction, Community Management Group stopped representing associations in magistrate's court, filing judgments in circuit court, and preparing and recording liens without an attorney. Additionally, Peck testified Community Management Group has no interest in resuming these activities. We decline to issue a permanent injunction in this situation.

(Mike Frisch)

February 25, 2017 in Current Affairs | Permalink | Comments (0)

Friday, February 24, 2017

Utah Supreme Court Clarifies Law Of Entrusted Funds

The Utah Supreme Court has issued its second significant decision on the law of entrusted funds in the past few days.

We hold that, for a presumption of disbarment, the [Office of Professional Conduct] must prove knowledge at the time of the transfer or withdrawal in cases where an attorney’s bank account dips below the amount that is supposed to be held for the attorney’s clients. Accordingly, we hold that the OPC failed to meet its burden of proof regarding the operating and trust account shortfalls. We also hold, however, that Mr. Bates knowingly failed to safeguard client funds. Suspension is the presumptive sanction, and we affirm the district court’s order for a five-month suspension in light of the mitigating factors.

The attorney had opened his own practice within six months of his admission.

The firm flourished and expanded for a few years but hit a bump

Just six months after beginning to practice law, Abraham Bates started his own law firm, Wasatch Advocates. Mr. Bates solely owned and operated Wasatch Advocates. Although the firm started with only six employees, its clientele rapidly expanded, and, within a single year, it employed thirty-seven people to meet the growing workload. In order to deal with the increasing expenses, Mr. Bates established lines of credit to maintain enough money in the firm’s operating account. He regularly made draws against these lines of credit.

Although he managed the operating and trust accounts on his own with the assistance of his receptionist in the beginning, the accounting became more complicated as the firm’s income and expenses quickly grew. Mr. Bates retained a certified public accountant to perform monthly reconciliations, auditing, and tax work. Later, as the practice expanded, Mr. Bates hired an accounting firm to do more frequent reconciliations and to train Mr. Bates and his staff in accounting procedures. Despite this, he noticed that there were still accounting issues, such as his receptionist mistakenly depositing client money into the operating account and earned fees into the trust account. At the accounting firm’s suggestion, a chief operating officer was also hired to help with the firm’s accounting practices. However, even after taking these corrective measures, the operation of the firm’s accounts remained chaotic.

In January 2012, Wasatch Advocates imploded due to changing economic circumstances and the abrupt departure of a significant proportion of Mr. Bates’ staff. Around the time of the firm’s dissolution, John Liti, a former client, filed a bar complaint against Wasatch Advocates resulting in an OPC investigation. During the investigation, the OPC focused heavily on Mr. Bates’ accounting practices and identified possible violations in other client matters. The only matter at issue on this appeal is the F.A. Apartments matter. The OPC alleges that Mr. Bates’ actions amount to intentional misappropriation of F.A. Apartments’ funds and merit disbarment in two different instances: his management of F.A. Apartments’ funds held in the trust account and his management of a retainer paid by F.A. Apartments that was held in the operating account.

The duty

 Attorneys occupy a position of trust because their clients rely on their honesty, skill, and good judgment. When an attorney intentionally misappropriates a client’s funds, it undermines the public’s trust in the entire legal profession and discredits the legal system in general...

In order to protect the “foundation[s] of . . . trust and honesty that are indispensable to the functioning of the attorney client relationship,” disbarment is usually appropriate in cases of intentional misappropriation of client funds...

However, not all misappropriation cases are intentional. To receive a presumption of disbarment, an attorney must “knowingly” misappropriate a client’s funds “with the intent to benefit the lawyer or another or to deceive the court.” UTAH SUP. CT. R. PROF’L PRACTICE 14-605(a)(1). On the other hand, if an attorney negligently misappropriates a client’s funds, the presumptive sanction is a public reprimand. Id. 14-605(c)...

For a presumption of disbarment, the OPC must establish that the attorney knowingly engaged in misconduct at the time the misconduct occurred.

Here, the evidence established knowing commingling but not intentional misappropriation

The evidence at trial demonstrated that, despite hiring qualified accountants and a chief operating officer to help him, Mr. Bates was grappling with significant organizational difficulties associated with a quickly growing business and his own lack of experience. In short, as the district court stated, “Bates was in way over his head . . . on a scale which a more experienced lawyer would have avoided.”

The evidence in this case corroborates Mr. Bates’ testimony at trial, supporting the inference that he unwittingly used his client’s funds for the firm’s payroll. Because he was not aware he was using client funds when the transfer was made, his actions were not knowing. Rather, they were negligent, with a presumptive sanction of a public reprimand...

We hold that the OPC failed to meet its burden of proof that Mr. Bates knowingly misappropriated his client’s funds. We do, however, hold that he knowingly commingled client funds and that he created the risk of injury to his client by later using F.A. Apartments’ money. Suspension is the presumptive sanction for Mr. Bates’ actions in commingling client funds without the intent to benefit himself or another.

Our post on the earlier decision is linked here. (Mike Frisch)

February 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wisconsin Denies Access To Sheriff Clarke's Immigration Detainer Records

A majority of the Wisconsin Supreme Court reversed the unanimous Court of Appeals and denied access to immigration detainer records sought from Fox News' favorite sheriff David Clarke.

We conclude that I-247 forms are statutorily exempt from disclosure according to the terms of Wisconsin public records law, and therefore, we need not reach common-law exemptions or the public interest balancing test. Stated more fully, under Wis. Stat. §§ 19.36(1)-(2),3 any record specifically exempted from disclosure pursuant to federal law also is exempt from disclosure under Wisconsin law. Federal regulation 8 C.F.R. § 236.6 (2013) precludes release of any information pertaining to individuals detained in a state or local facility and I-247 forms contain only such information.

There is a dissent from Justicxe Ann Walsh Bradley

Wisconsin's Public Records Law "serves one of the basic tenets of our democratic system by providing an opportunity for public oversight of the workings of government." Majority op., ¶17 (citations omitted). Relying on this basic tenet, Voces de la Frontera requests unredacted copies of federal immigration detainer forms issued to Milwaukee County Sheriff David Clarke by Immigration and Customs Enforcement ("ICE").

The circuit court determined that Wisconsin's Public Records Law requires the release of unredacted copies of the detainer forms. It explained that Voces de la Frontera made a compelling case and that Sheriff Clarke offered no good reason to justify any redaction.

The court of appeals affirmed. Noting uncontested facts, it rejected Sheriff Clarke's newly raised argument that an obscure federal regulation, 8 C.F.R. § 236.6, precluded release of the detainer forms

Sheriff Clarke now contends that no detainer forms should be released. He asserts that the forms are statutorily exempt from disclosure and that his office erred when it previously released redacted detainer forms to Voces.

Reneging on previously uncontested facts and relying on a belatedly cited obscure federal regulation——never before applied to state or local detainees——Sheriff Clarke tosses a "hail mary" pass to the Wisconsin Supreme Court.

The majority catches the pass and runs with it, but unfortunately makes no forward progress for the people of this state. Instead, a majority of this court loses ground, yet again chipping away at Wisconsin's long-standing commitment to open government. See, e.g., Democratic Party of Wisconsin v. Wisconsin Dep't of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584.

Once more a majority of this court reverses a unanimous court of appeals decision affirming a circuit court order requiring the release of records to the public, further undermining the principle that Wisconsin Public Records Law be construed "in every instance with a presumption of complete public access." Wis. Stat. § 19.31.

This time the majority rewrites a federal regulation by deleting the phrase "on behalf of the Service" from the regulatory language in order to reach its conclusion that yet another public records request must fail. Given the cumulative effect of the majority's approach, one wonders if a day will come when we awake to find that this continuous "chipping away" has substantially gutted Wisconsin's commitment to open government.

Contrary to the majority, I agree with the circuit court that Clark offers no good reason to counter the strong presumption of open access to these public records. I likewise agree with the unanimous court of appeals that the federal regulation does not statutorily exempt immigration detainer forms from release under Wisconsin's Public Records Law. Both the plain language of the federal regulation and its promulgation history establish that it applies only to detainees in the custody of the federal government.

Accordingly, I respectfully dissent

Justice Abrahamson joined the dissent. (Mike Frisch) 

February 24, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, February 23, 2017

No Suit For Plaintiff Allegedly Tortured For Converting To Christianity

The dismissal of a lawsuit against a church was affirmed by the Oklahoma Supreme Court

The story

This appeal originates from a lawsuit filed by Plaintiff/Appellant John Doe (a pseudonym for Plaintiff) (hereinafter, "Appellant") against Defendants/Appellees The First Presbyterian Church of U.S.A. of Tulsa, Oklahoma, and James D. Miller (hereinafter, "Appellees") alleging breach of contract, negligence, and outrage. Appellant alleges he was born in Syria into the Muslim Faith, but for most of his adult life has resided in the United States. As part of what he refers to as his westernization, Appellant made the decision to convert from Islam to Christianity.

The precise relationship between Appellant and Appellees is disputed, but it is undisputed that Appellant was baptized at his own request at The First Presbyterian Church U.S.A. of Tulsa, Oklahoma (FPC) by James D. Miller (Miller). Appellant alleges he made Appellees aware of the need for confidentiality throughout the conversion process, as he was planning to return to Syria shortly thereafter. Appellant's baptism took place on December 30, 2012, during a service that was open to members and guests of the church, but was not televised. It is undisputed that Appellant was not and never became a member of FPC, before or after his baptism.

Appellant alleges he travelled to Syria almost immediately after his baptism, arriving in Damascus on January 2, 2013. Appellant asserts he was confronted by radical Muslims in Damascus in mid-January, 2013, who had heard of his conversion on the internet. Appellant alleges he was kidnapped, and informed by his kidnappers they were going to carry out his death sentence as a result of his conversion from Islam.

Appellant alleges he was tortured for several days before he was able to escape captivity, killing his paternal uncle in the process. As a result, he asserts he is now wanted for murder in Syria. Appellant alleges he was able to clandestinely make it back to the United States, where he faces continuous death threats. Appellant asserts he suffered numerous physical injuries and psychological damage, all proximately caused by Appellees' publication of his baptism, in contravention of promises they supposedly made to him that it would be kept confidential.

The suit was filed after he returned to the United States.

The court

Recognizing the importance of the autonomy of religious institutions within the framework of the United States legal system, the courts must refrain from undue interference with religious beliefs and practices. Appellant exercised his right to convert to Christianity and accord his religious beliefs with the demands of his conscience. Similarly, Appellees exercised their right to perform the sacrament of baptism in accordance with the doctrine and a custom of the Church. It is not the role of the courts to adjudicate a dispute between Appellant and Appellees over the publication of Appellant's baptism in accord with Church practice, even if Appellant was harmed by his baptism and its subsequent publication. Per the church autonomy doctrine, the courts lack subject matter jurisdiction over the matter. Accordingly, the decision of the trial court is affirmed.

 (Mike Frisch)

February 23, 2017 in Current Affairs | Permalink | Comments (0)

Disbarment For Theft Conviction

The Maryland Court of Appeals issued an opinion explaining its earlier-imposed order of disbarment of an attorney convicted of felony theft from a client.

In early 2011, Dr. Tsai hired Respondent to assist him in his claim for disability benefits from his insurer, Penn Mutual (the "Penn Mutual Case"). Sweitzer, slip op. at 2. Respondent agreed to the representation for a flat fee of $4,000, which Dr. Tsai paid. Id. Dr. Tsai’s claim was premised on the medical opinion of Dr. Gerwin, who eventually reversed his medical opinion and concluded that Dr. Tsai was not totally disabled. Id. As a result, Respondent urged Dr. Tsai to settle the Penn Mutual case and pursue a possible claim against Dr. Gerwin. Id.

Meanwhile, Nu Image, a film company, filed a copyright claim against Dr. Tsai, alleging that he illegally downloaded movies from the internet (the "Nu Image Case"). Id. Respondent also represented Dr. Tsai in that matter for a flat fee of $1,000, which Dr. Tsai paid. Id. at 2-3. When Respondent informed Dr. Tsai that Nu Image indicated its willingness to settle the case for $2,000, Dr. Tsai sent Respondent $2,000 to settle the case. Id. at 3. Respondent did not settle the case, nor did he return the $2,000 to Dr. Tsai. Id. at 7. Dr. Tsai employed another attorney to settle the Nu Image Case but was unable to recover his $2,000 from Respondent. Id.

In early 2012, Respondent informed Dr. Tsai that Penn Mutual would settle its case for $40,000-$50,000. Id. at 3. Eventually, Dr. Tsai agreed to settle for $54,000, and the settlement agreement was executed on May 21, 2012. Id. Per the terms of the settlement agreement, Penn Mutual sent Respondent the settlement funds. Id. The disbursement sheet Respondent sent to Dr. Tsai indicated that Dr. Tsai was to receive $54,881.93. Id. Over the following months, Dr. Tsai made "repeated attempts to get his settlement proceeds" from the Penn Mutual Case. Id. During that time, Respondent exhibited a "collection of excuses and [a] litany of impediments that allegedly prevented him from delivering Dr. Tsai’s funds." Id. Respondent never paid Dr. Tsai the $54,881.93 in settlement proceeds from the Penn Mutual Case. Id. at 4-7.


In the present case, Respondent exhibited intentionally dishonest behavior in committing theft against his client. Indeed, Respondent was convicted of felony theft of his client’s funds, an act that was perpetuated by Respondent’s falsehoods and misrepresentations made to his client. Despite having the opportunity to do so, Respondent did not present to the hearing judge any facts or circumstances that arguably would mitigate his conduct, let alone did he offer to the hearing judge or, for that matter, this Court, compelling circumstances that would lead us to impose a lesser sanction. Respondent’s misconduct is deserving of the ultimate sanction.

The court entered its order after the attorney failed to appear for oral argument. (Mike Frisch)

February 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Decision Of "Limited Precedential Value" Has Some Resonance

The District of Columbia Court of Appeals reciprocally disbarred an attorney convicted of tax offenses and disbarred in New York.

Mr. Lifshitz pleaded guilty to one count of filing a false personal tax return in violation of N.Y. Tax Law § 1804 (b) and accordingly notified the New York Clerk of the Court of his resignation on November 20, 2008. Mr. Lifshitz was disbarred on October 1, 2009, effective nunc pro tunc to November 20, 2008, the date of his conviction.

He has now been reinstated in New York but had not reported his disbarment to D.C. as required by court rule.

New York was aware that he had failed to report but credited his explanation in granting him reinstatement.

The court here found no grave injustice in disbarment

Mr. Lifshitz argues that reciprocal discipline in his case would be a “grave injustice” because if he were disbarred, then he would have to wait until 2021—thirteen years after his initial disbarment in New York—to apply for reinstatement in the District of Columbia. We have previously held that when, as here, an attorney has never practiced, has no clients, and no intent to practice in the future in the District of Columbia, assertions of “grave injustice” regarding the reciprocal discipline doctrine are “largely meritless.” In re Fuchs, 905 A.2d 160, 164 (D.C. 2006) (“This argument is largely meritless as respondent argues grave injustice and then stipulates that he has never practiced in the District of Columbia, has no relationship with any counsel in the District of Columbia, has no clients or office in the District of Columbia and has no plans to practice law in the District of Columbia.”). Accordingly, the grave injustice exception does not apply in Mr. Lifshitz’s case, and thus, we impose reciprocal discipline.

The court imposed the sanction effective in 2009 notwithstanding the attorney's failure to report the New York sanction

Similar to the respondent in In re Glasco, Mr. Lifshitz never practiced in the District of Columbia and thus his failure to report was not a calculated feat designed to illegally practice in the District. Indeed, as he indicates, in October 2009 he was administratively suspended from the practice of law due to his nonpayment of dues. Moreover, the New York Departmental Disciplinary Committee, which was aware of this disciplinary matter in the District of Columbia, concluded that Mr. Lifshitz “has demonstrated that he possesses the requisite character and general fitness to practice law.” That Committee stressed Mr. Lifshitz’s moral transformation and newfound goals to set up a pro bono practice.

He is thus immediately eligible to seek reinstatement in the District of Columbia.

In re Glasco  (decided in 1999) was my case.

There the court granted nunc pro tunc treatment to a California disbarment that , like here, came to light in D.C. only when the attorney sought reinstatement in the court that had imposed the sanction.

The court quoted the Board on Professional Responsibility

While Bar Counsel is correct that sound policy reasons support encouraging attorneys to notify this jurisdiction of foreign sanctions, according retroactive effect to Respondent's disbarment should not have a detrimental effect on this policy goal.   Respondent was solely responsible for bringing his conviction and disbarment to Bar Counsel's attention;  although the notice was filed late, Respondent stated that he believed the notice had been provided earlier by the California State Bar, and he did not exploit the lack of notice by using his District of Columbia license to practice.  

For these and the other unique circumstances presented by this case, it will have, as the Board noted, limited precedential value.

Limited but apparently the precedent still has some vitality.

I well remember the Glasco oral argument and, in particular, the close questioning from now-Senior Judge Inez Reid.

Judge Reid always came to oral argument superbly well-prepared and knowing exactly what questions needed answers.

A great judge. (Mike Frisch)

February 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, February 22, 2017

Utah Supreme Court: "Not All Misappropriation Is Created Equal"

The Utah Supreme Court affirmed a suspension for dishonesty in a case where an attorney had bartered legal services with two clients for home improvements and deprived his firm of its fees.

Attorney Joseph Barrett exchanged legal services for construction work on his home and yard, thereby depriving his law firm, Snow, Christensen & Martineau P.C. (SCM), of the legal fees accrued from those cases. The district court suspended Mr. Barrett from the practice of law after it concluded that Mr. Barrett’s conduct violated rule 8.4(c) of the Utah Rules of Professional Conduct. The Office of Professional Conduct (OPC) appealed, urging us to hold that the intentional or knowing misappropriation of firm funds, like the intentional or knowing misappropriation of client funds, creates a presumption of disbarment. Mr. Barrett cross-appealed, arguing that the district court’s factual findings were clearly erroneous and a result of bias and that suspension was too harsh a sanction. We affirm the district court in part, reverse in part, and uphold the sanction of suspension.

The story

The misconduct allegations in this case stem from three independent situations: two involving legal services Mr. Barrett provided to clients in exchange for construction work on his home and yard, and one involving Mr. Barrett’s reimbursement request for a phone call with a potential client.

With respect to the first situation, Mr. Barrett began providing legal services to Richard Williams in June 2007 when Mr. Williams retained SCM and Mr. Barrett to represent his son in a criminal matter. Over the next three years, Mr. Barrett worked on that case, a collection matter for Mr. Williams’s company, and new criminal matters for Mr. Williams’s son. In June 2010, Mr. Barrett requested that the firm write off over $7,000 from Mr. Williams’s account. Around that time, Mr. Williams’s brother-in-law began building a wrought-iron railing for Mr. Barrett’s home, but he was unable to finish it. In July 2010, Mr. Williams wrote a check to Mr. Barrett for $3,500, which Mr. Barrett deposited into his personal account. According to Mr. Barrett, Mr. Williams proposed that his brother-in-law work on the railing as a “kind gesture” and Mr. Williams insisted on paying Mr. Barrett $3,500 so he could hire someone else to finish the job. Mr. Barrett claims that he wrote off Mr. Williams’s bills as a professional courtesy so Mr. Williams would continue to refer clients to Mr. Barrett and because he believed it was the compassionate thing to do. But by 2012, of the $8,612.07 that SCM billed to Mr. Williams’s account, Mr. Barrett had written off $7,912.07. And Mr. Williams had paid SCM only $700 while paying Mr. Barrett personally $3,500...

The second situation involves legal services Mr. Barrett provided to David Petersen. Mr. Barrett began legal work for Mr. Petersen in November 2010, when Mr. Petersen hired Mr. Barrett’s firm to represent him in a custody case. Several months later, Mr. Petersen started building a shed at Mr. Barrett’s home. Shortly afterward, Mr. Barrett requested that the firm write off about half of Mr. Petersen’s bill. Over the next couple of months, Mr. Barrett requested that SCM write off the rest of Mr. Petersen’s bill, and the firm refunded his $2,500 retainer. Mr. Barrett paid Mr. Petersen approximately $5,000 for the shed, which had cost Mr. Petersen $15,170.63 to build. In all, Mr. Barrett wrote off $8,913.54 from Mr. Petersen’s account at SCM. Mr. Barrett stated that he wrote off Mr. Petersen’s bills and refunded his retainer because he believed Mr. Petersen would be unable to pay and needed the money to visit his son. Mr. Petersen, however, testified that he had an agreement with Mr. Barrett to build the shed in exchange for legal services.

The third and final situation arose in January 2012 when Mr. Barrett requested reimbursement for a business development lunch in California that he did not attend. Mr. Barrett’s wife attended the lunch, and Mr. Barrett stated that he discussed business matters with a potential client over a phone call that took place during the lunch.

The firm confronted him over billing issues and reported him to the Bar.

The district court found misconduct and ordered suspension.

The district court concluded that Mr. Barrett’s actions constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation,” but, given that Mr. Barrett did not misappropriate client funds, concluded that “disbarment . . . [was] not mandated in this case.” After considering the duty that Mr. Barrett violated and Mr. Barrett’s mental state, and weighing the aggravating and mitigating circumstances, the court imposed a 150-day suspension, which both parties appeal.

The court here rejected the attorney's vigorous attack on the district court's findings.

As to sanction

We have frequently stated that intentional or knowing misappropriation of client funds creates a presumption of disbarment under this section, noting that “it strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself.” In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997); see also In re Discipline of Corey, 2012 UT 21, ¶ 21 & n.9, 274 P.3d 972. In its brief to this court, the OPC asked us to extend this presumption to all acts of intentional or knowing misappropriation of firm funds. At oral argument, the OPC pressed the stronger position that we have already recognized that misappropriation of firm funds is a presumptively disbarrable offense, citing our opinion in In re Discipline of Ince, 957 P.2d 1233 (Utah 1998).

In Ince, we imposed disbarment after finding that the attorney misappropriated money from both his firm and his clients, thereby engaging in criminal conduct and actions that “seriously adversely reflect on [the lawyer’s] fitness to practice law.” Id. at 1237. We noted that whether “the majority of the money [the attorney] stole came from his law firm rather than from a client neither changes the essential nature of his conduct nor makes it any less serious,” and we therefore adopted the position that intentional misappropriation of firm funds merits disbarment. Id. But that language was merely dicta, which we now reject, noting that Ince’s holding relied on facts that are not applicable to Mr. Barrett’s case.

...we clarify today that not all misappropriation is created equal. Misappropriation of firm funds does not “undermine the foundations of the profession and the public confidence” in the same way that misusing client funds does. Id. A presumption of disbarment for intentional or knowing misappropriation of client funds is necessary to protect the “foundations of the profession and the public confidence that is essential to the functioning of our legal system,” and we have placed it among the top of our sanctionable offenses as a way of putting attorneys on notice that such actions are “always indefensible.” Id. But the same policy concerns do not arise where no client money is at issue, and we want to leave no doubt in stating that intentional or knowing misappropriation of client funds is intolerable. Thus, we will not extend Ince to mean that where an attorney has misappropriated firm funds but not client funds, the presumption of disbarment must apply. In this case, Mr. Barrett did not misappropriate client funds. We therefore decline to extend Ince’s ruling to hold that disbarment is the appropriate sanction whenever an attorney misappropriates firm funds, and we find that Mr. Barrett’s knowing and intentional misappropriation of firm funds does not fall within rule 14-605(a)(3).

Thus no "death penalty"

Although Mr. Barrett’s misappropriation of firm funds is not deserving of the “professional death-sentence” of disbarment, Corey, 2012 UT 21, ¶ 40, we hold that suspension is appropriate. Intentional or knowing misappropriation of firm funds is a serious offense, and we conclude that Mr. Barrett’s intentional and knowing mental state, combined with the actual injury caused to his firm from losing the client funds that were due to it, along with the lack of compelling mitigating factors, merits a serious sanction. We therefore agree with the district court that the aggravating and mitigating factors do not justify deviating from suspension, and we uphold the court’s order of a 150-day suspension.

However, we part ways with the district court in two respects. First, we do not find that Mr. Barrett’s repayment of misappropriated funds constituted the mitigating circumstance that there has been a “timely good faith effort to make restitution.”...Mr. Barrett repaid SCM only after the firm accused him of misconduct, not as a result of self reporting. Therefore, we will not consider his restitution as a mitigating factor.

Second, the court found that there was no misconduct in billing the California lunch.

...there is no evidence that SCM’s policies prohibited Mr. Barrett from requesting reimbursement for a meal that he did not attend when he had spoken to the potential client on the phone. And in the absence of evidence that Mr. Barrett intentionally deceived the firm as to his presence at the lunch, we do not believe his conduct rises to the level that a sanction is necessary.

(Mike Frisch)

February 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Disbarred For Sex Abuse Of Boy Scouts

Automatic disbarment as a consequence of a felony conviction was imposed by the New York Appellate Division for the Second Judicial Department.

Pursuant to Judiciary Law § 90(4)(a), the respondent was automatically disbarred and ceased to be an attorney upon his conviction of a felony.

The Poughkeepsie Journal reported on the trial and verdict

Former Dutchess County Legislator Michael Kelsey will wait two months to learn his fate after being found guilty on all charges in his sexual abuse case.

A St. Lawrence County jury had deliberated for close to 10 hours over the course of two days before finding him guilty of the five charges related to his sexual abuse of two Boy Scouts...

Justice was served today,” the mother of one of Kelsey’s victims said after hearing the verdict. She thanked each and every juror as they left the courtroom.

Kelsey, a 38-year-old former assistant scoutmaster, was convicted of first-degree sexual abuse and first-degree attempted sexual abuse, both felonies, along with forcible touching, and two counts of endangering the welfare of a child, all misdemeanors. The crimes occurred during a Boy Scout camping trip Aug. 13-20, 2014.

“I feel proud of these boys,” one of the mothers told the Journal after the verdict was read. “It was a very difficult thing that they had to do. I am happy with the outcome to show the boys what they did was the right thing. These boys showed truthfulness, honesty and, above all, courage.”

St. Lawrence County District Attorney Mary Rain applauded the two teens’ decision to come forward with the allegations.

“It was very difficult for these two young men to come up against such a force in the community, who had such great respect. But they did come forward,” Rain said. “They had adults that believed in them. They had the (St. Lawrence County District Attorney’s Office) and police that also believed in them. I want other young victims to know if you come forward, we will assist you with counseling or prosecution or both.”

Rain said she will be pursuing the maximum sentence in the case.

“The defendant has persistently abused these boys physically as he did on the hiking trip but he continued to do so during motion practice and during the trial itself," Rain said. "He was put in a position of great responsibility for the lives of young men and he took advantage of that. And for that we want to send a message to other people that want to use this platform… as a way to abuse (children).”

The press had sought comments from defense attorney Richard Portale, but he was unavailable after the verdict.

Kelsey’s victims were two 15-year-old boys in 2014. The young men, now 16 and 17, testified they were on a camping trip with Kelsey and that he touched one of them and attempted to touch the other while they were sleeping.

Kelsey, an attorney, gave his own opening statement. He also testified Tuesday saying he believed one of the boys had made “advances” at him.

Rain, in her closing argument Wednesday, tore into Kelsey’s explanations and claims. Like defense attorney Portale, she asked jurors to look at the credibility of the witnesses on both sides of the case.

Rain dismissed Kelsey’s claims as “bizarre, ridiculous and nonsense.” She added Kelsey “cloaked himself” in his religion, his reputation as a public servant. She said he also used various excuses for his actions.

The boys and their parents were in the courtroom Thursday. The boys’ mothers teared up after the verdict was announced. After the verdict, one of the fathers of the two boys read a written statement on behalf of the family.

"We are so proud of our boys for bringing this forward and preventing this from happening to other boys," the father said. “We’re also extremely thankful to District Attorney Mary Rain for the masterful job she did prosecuting this case.”

The father also thanked the entire District Attorney’s Office, state police investigators and the families’ state police child advocacy officer.

To the Journal, the father said: “Troop 95 suffered greatly from this as well. We are still grateful for the organization and hoping that it can recover and continue to provide boys in the Hudson Valley with a wonderful experience.”

Evidence in the trial included a recording of a phone call where the former legislator can be heard saying “I reached for him in an area I shouldn't have,” referring to the teenager’s genitals, and, “He batted my hands away.”

One the teenagers later testified to fending off the advances, including batting Kelsey's hands away, zipping up his sleeping bag, and trying to wake up a fellow Scout sleeping nearby; the Scout misunderstood him and went back to sleep. The teen said Kelsey apologized the next day, saying he does "stupid things sometimes.”

The teenager also testified that Kelsey had tried to touch his genitals on an earlier date. He said, while playing a game in a hot tub in which Kelsey tried to touch his nipples, he covered up his chest, only to have Kelsey touch his groin instead. That was the first time Kelsey's behavior had "raised any alarms" with him, the teen said.

The other victim testified that, while the Scouts slept in Kelsey’s Volkswagen Jetta on the first night of the trip, the former legislator rubbed his genitals “for 10-20 minutes.”

On Tuesday, Kelsey testified he did not touch either Scout and said he believed one of the teens made "advances" at him. He detailed an incident in which he woke up to find one of the teens asleep on his chest. Kelsey said he apologized to the teen the next day because he didn’t feel about him “in that way.”

When the teen took the stand last week, he said his relationship with Kelsey was not “romantic.”

Kelsey admitted to texting both boys multiple times on separate occasions, but denied grabbing one of the victims' genitals in a hot tub.

Both victims admitted to reaching out to Kelsey several times after the August incident. They also admitted to withholding some information from investigators initially, including a game involving removing articles of clothing during the drive to the campsite.

When asked by Rain about why he did not immediately tell an adult, one victim said, “I just wanted everything to go back to normal.” He said he also didn’t think anyone would believe him because Kelsey is “such a great guy and so many people look up to him.

“Everybody liked (Kelsey),” one mother said after the trial. “It took a lot of courage for these boys to stand up and they did. They prevented this from happening to other boys.”

Another Scout who was on the August trip said Kelsey slept alongside the Scouts each night of the trip, which Rain said was a violation of Scout youth protection rules.

Kelsey and another assistant scoutmaster, Thomas Reilly, argued this point. Reilly said that the rules are not as clear for the elite Boy Scout group known as Venture Crew, and Kelsey said that his “interpretation” of the guidelines meant the rule only applied to tents.

Once a respected Dutchess County legislator and rising star in the local Republican Party, Kelsey lost his bid for reelection in September’s Republican primary election to Sandra Washburn. Kelsey was permanently suspended from the Boy Scouts of America in October.

Kelsey was sent without bail to a holding cell in St. Lawrence County Jail. He had been released on bail since his arrest in December 2014 by state police in Wappinger.

Rain asked for remand, saying that Kelsey should be kept under close supervision since he mentioned in his testimony that he attempted suicide after the allegations surfaced.

The Poughkeepsie Journal also reported on the sentencing with a link to the victim impact statements. 

Kelsey, a former Dutchess County legislator convicted of sexual abuse in a case involving two Boy Scouts, was sentenced to seven years in prison and 10 years post-release supervision Friday.

“Every Boy Scout … trusted Mike with our lives,” said one of the young men, according to an official court transcript of the sentencing obtained by the Poughkeepsie Journal. “Not only us, but our parents trusted him to take us on these amazing trips, have fun, make memories and bring us home safely.”

(Mike Frisch)

February 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"99%...Pure Bullshit"

In a matter involving allegations of misconduct against a sitting judge, the Maryland Court of Appeals directed that the Commission on Judicial Disabilities file the record of proceedings leading to a reprimand for the court's limited review

The Commission has the power to reprimand a judge, which it had exercised in the matter.

The court

In this case, we must decide – initially – whether there is any mechanism for this Court to review the fundamental fairness of a proceeding conducted by the Commission on Judicial Disabilities (“Commission”) when the Commission disciplines a judge in the sole manner in which the Constitution authorizes it to do without referring the matter to this Court. We hold that there is such a mechanism – the common law writ of mandamus. Our review in this particular case awaits the provision by the Commission of the record of its proceedings.

The judicial complaint involved a judge-lawyer interaction in a civil case that had led to the judge's recusal.

The judge stated

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire – I’m reading off the letterhead – tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under … Rule 2.11 [of the Maryland Code of Judicial Conduct] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself.

The court

Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.”


Mr. Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014.

A hearing was held by the Commission and a reprimand imposed.

The judge sought review

The immediate question before us is whether there is any mechanism for us to review Commission proceedings when the Commission determines that a reprimand is the appropriate discipline – a form of discipline that the Constitution authorizes the Commission to impose on its own without referring the matter to us. We hold that there is no constitutional or statutory basis for this Court to exercise appellate jurisdiction to review the Commission’s proceedings. We do have original jurisdiction, however, to conduct a limited review, pursuant to a common law writ of mandamus, of Judge White’s claims that the Commission abused its discretion and deprived her of the procedural due process guaranteed by the State Constitution and Maryland Rules. In order to conduct that review, we direct the Commission to file the record of its proceedings with us. To the extent that Judge White asks for review of matters that preceded the filing of charges, she must submit a written waiver of confidentiality to the Commission.

The court held that an accused judge is entitled to due process but

Our review under a writ of mandamus, however, is limited. The Constitution and our rules provide for the Commission to issue a reprimand without approval or review by this Court. The Commission’s decision to issue a public reprimand is properly classified as a non-ministerial discretionary act that is dependent upon the judgment of the Commission members. Once the Commission has provided an accused judge with the requisite due process, it is entrusted to the Commission’s discretion whether to dismiss the charges, reprimand the judge, or recommend other discipline to us. Thus, a writ of mandamus is not available to review a claim that the Commission erred in concluding that a judge committed sanctionable conduct or in its judgment to reprimand the judge as a result of that conclusion...

In order to carry out the review of Commission proceedings for which we have jurisdiction, we direct the Commission to file the record of the proceedings concerning its charges against Judge White, including that part of its record relating to the pre-charging period for which Judge White waives confidentiality. Once the record has been filed with the Court, the parties shall submit additional briefs and an appropriate record extract, according to a schedule set forth by future order of the Court. Such briefing shall be limited to the question of whether the Commission proceedings failed to comply with the Constitution and Maryland Rules and, if so, whether any such failure affected the fundamental fairness of the proceeding.

The charges filed against the judge are linked here.

The oral argument before the Court of Appeals is linked here.

The judge's alma mater Washington & Lee noted that she was named Maryland Judge of the Year in 2014. (Mike Frisch)

February 22, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Advice On Immigration Consequences Of Guilty Plea Deemed Sufficient

The Minnesota Supreme Court affirmed a decision to deny a motion to withdraw a guilty plea

This case requires us to determine the extent of a criminal-defense attorney’s obligation under the Sixth Amendment to the United States Constitution to inform a noncitizen defendant of the immigration consequences of a guilty plea. The appellant, Francisco Herrera Sanchez, pleaded guilty to third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(b) (2016), which led to the initiation of removal proceedings against him. In an effort to avoid deportation, Sanchez filed an emergency motion to withdraw his guilty plea, in which he argued, in part, that his counsel provided ineffective assistance by failing to accurately inform him that the plea would lead to his removal from the United States. The postconviction court denied Sanchez’s motion to withdraw the plea, and the court of appeals affirmed. Because Sanchez’s counsel accurately advised him about the immigration consequences of his plea, we also affirm.

The court

...even if Padilla leaves open the possibility that a criminal-defense attorney has a constitutional obligation to review relevant case law and administrative interpretations before providing advice to a noncitizen defendant contemplating a guilty plea, Padilla did not require Sanchez’s counsel to do anything more than provide a general warning about the immigration consequences of entering the plea. If the obligation of Sanchez’s counsel was limited to reading and interpreting the relevant immigration statutes, then we reach the same conclusion: the statutes were not sufficiently clear to impose an obligation on counsel to do anything more than he did. Either way, Sanchez’s counsel satisfied his obligation under the Sixth Amendment.

(Mike Frisch)

February 22, 2017 | Permalink | Comments (0)

Client Security Payment Should Fall On Offending Attorney

The Wisconsin Supreme Court accepted an attorney's voluntary license revocation for misconduct in multiple matters

We revoke Attorney Gegner's Wisconsin law license effective the date of this order. The scope of his misconduct is vast and troubling. It is not necessary to set forth the particular factual allegations of every instance of misconduct in every client matter involved in this case. Doing so would be overly cumbersome, given that the amended complaint alone alleges almost four dozen misconduct counts, described in some 231 separately numbered paragraphs. A synopsis of the information contained in the attachments to Attorney Gegner's petition for revocation will provide a sufficient description of the nature and scope of his professional misconduct.

As stated above, the OLR's amended complaint in this disciplinary proceeding, attached as Appendix A to the revocation petition, sets forth 47 counts of misconduct involving 11 different clients and an allegation of practicing law after suspension.

The court quoted from the referee's findings

The facts established by OLR portray a repeated pattern of serious misconduct from 2011 into 2015. The facts establish a law practice that was spiraling out of control. Mr. Gegner would fail to communicate with his clients and would fail to perform the legal work and services that were necessary. He would at times misrepresent the status of his work to both the clients and court. He misused and converted client funds and failed to provide any accounting. The record establishes numerous aggravating factors in this case and based on the Petition for Revocation by Consent, no mitigating factors have been shown.

"[T]o make matters worse," the referee noted, "there are at least 13 counts relating to Mr. Gegner's obstinate failure to cooperate with OLR's investigations...


We agree with the referee that Attorney Gegner's petition for consensual revocation should be granted. Attorney Gegner has engaged in a widespread pattern of serious professional misconduct that has harmed his clients. He is either unwilling or unable to conform his conduct to the standards that are required to practice law in this state. Anything less than a revocation of his law license would unduly depreciate the seriousness of his misconduct, fail to protect the public and the court system from further misconduct, and inadequately deter similar misbehavior by other attorneys. Revocation is clearly deserved.

The court ordered restitution to several clients and noted

We make one further observation (and ruling) on the issue of restitution. In the OLR's December 29, 2016 supplemental restitution statement, the OLR stated that it would not seek restitution for a $1,000 payment to Attorney Gegner's former client, Michelle A., which the Fund [for Client Protection] approved on December 14, 2016. The OLR explained that, notwithstanding this payment by the Fund, the OLR's investigation did not identify a reasonably ascertainable amount of restitution to seek in the Michelle A. matter, and therefore it had not sought restitution in this matter, and would not do so now. Mindful that the Fund is financed by State Bar of Wisconsin members' annual fees, we fail to see why the $1,000 payment by the Fund to Michelle A. should be financed by members of the bar who have not engaged in misconduct, as opposed to Attorney Gegner, who has conceded his misconduct in the Michelle A. matter. We acknowledge that the Fund's $1,000 payment to Michelle A. was not addressed in the consensual revocation petition or in the referee's report, but we cannot envision any scenario in which Attorney Gegner could avoid reimbursing the Fund for this payment. We therefore order Attorney Gegner to reimburse the Fund in this amount. To the extent that Attorney Gegner disagrees with this court's ruling on this point, he is free to move the court to reconsider its ruling. 

(Mike Frisch)

February 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)